Delong v. Delong

14 N.W. 591, 56 Wis. 514, 1883 Wisc. LEXIS 395

• Court: Wisconsin Supreme Court
• Decided: January 9, 1883
• Status: Published

Opinion

Lyon, J.

In Bogie v. Bogie, 41 Wis., 209, and Bresnahan v. Bresnahan, 46 Wis., 385, it was held that a court of equity will rescind a conveyance made by a father to a son, the only consideration for which is the covenant of the son to support and maintain his father, or his parents, if the son fail to perform such covenant. In the conveyance under consideration in each of these cases the obligation of the son rested in covenant, not in condition.

In Blake v. Blake, ante, p. 392, it was said, in substance, that in such a case stipulations in the conveyance might be held conditions subsequent, which in other and different cases would be held covenants merely. This is an application to this class of conveyances of the rule of construction which prevails in the case of a voluntary conveyance. Horner v. C., M. & St. P. Railway Co., 38 Wis., 165.

The conveyances of October 10,1874, and December 10, 1875, executed by the plaintiff and his wife to the defendants, belong to the same class. Manifestly they were made to secure the means for the support and maintenance of the grantors and their daughter, and to provide for the distribution of their estate to their children after their decease. That was the sole consideration upon which the conveyances were made. Both conveyances contain apt and proper words, making the stipulations of the defendants, therein contained, conditions subsequent, a failure to perform which might work a forfeiture of their title to the estate. We find no difficulty in holding that these stipulations are conditions subsequent, and not merely covenants. It is undisputed in the case that there have been substantial breaches of those conditions. The instrument of December 14,1880, executed by the plaintiff and the defendant James II. Delong, is either a mere proposition or offer by the plaintiff to sell the lands in controversy to James II. absolutely, at the price, and on the terms therein stipulated (which would convey to James U. no interest in the lands), or it is merely a waiver by the plaintiff of the breaches by James II. of the conditions contained in the former instruments, and a substitution therefor of new and different conditions. The new conditions, however, are in such case conditions subsequent, and there has been an entire failure by James H. to perform them. We are inclined to think the latter view of the instrument is the correct one.

It follows that when this action was commenced the plaintiff’s right of re-entry upon the lands claimed for conditions broken was absolute and perfect as against both defendants, and he may maintain ejectment to enforce that right. The nonsuit was, therefore, erroneously granted. Under a stipulation in the conveyance of December 10, 1815, the plaintiff agreed to pay James U. the value of permanent improvements made by him in case of re-entry for conditions broken. No reason is perceived why the value of these improvements may not be ascertained in this action and allowed to the defendants. The proper procedure in that behalf is prescribed by statute. R. S., 805, secs. 3096-3100. Against the value of such improvements, the plaintiff must be allowed all unpaid sums which, in the instrument of December 10, 1875, James II, or the defendants,, stipulated to pay the plaintiff to the commencement of this action.

By the Court.— Judgment reversed, and cause remanded for a new trial.